“Because the panel did nothing more than direct the District Court to apply well-settled principles of [Clean Air Act] penalty assessment, there is no error—much less one of exceptional public importance—to correct,” the Sierra Club and Environment Texas Citizen Lobby Inc., which had originally sued Exxon, told the U.S. Court of Appeals for the Fifth Circuit in a July 25 filing.

Exxon in July had asked the entire Fifth Circuit to rehear en banc a unanimous decision that vacated a district court ruling that imposed no penalties on Exxon for alleged Clean Air Act violations at the company's Baytown refining and petrochemical complex. The court ruled that U.S. District Court Judge David Hittner erred in failing to consider evidence related to potential economic benefits realized by Exxon through the delayed implementation of emissions reductions measures (Env't Tex. Citizen Lobby v. ExxonMobil Corp., 2016 BL 170179, 82 ERC 1589 (5th Cir. 2016)).

Exxon, in a July 11 petition, asked the full Fifth Circuit to rehear the litigation. The company said en banc rehearing is warranted to correct two mistakes by the panel:

• a holding that the District Court's analysis of the economic benefit issue is required to include a consideration of the four environmental improvement projects negotiated between Exxon and state regulators; and

• the panel's failure to hold that permit language providing that an event is “not authorized” does not mean that the event is a permit violation.

Both of those aspects of the panel's decision “threaten the regulatory framework” and could impact all companies that are subject to Clean Air Act permits, Exxon argued.

The rehearing request is opposed by Sierra Club and Environment Texas Citizen Lobby Inc. who said that Exxon's argument on the consideration of pollution reduction projects in the calculation of economic benefit of noncompliance is in opposition to both Clean Air Act language and established case law.

Exxon's request to rehear the issue on permitting language that “upset emissions are not authorized” is not one of exceptional public importance and does not conflict with any U.S. Supreme Court or Fifth Circuit precedent, the environmental groups argued.

Federal appeals courts, including the Fifth Circuit, rarely grant en banc rehearing requests. From 2001-2009, just 0.08 percent of the cases in the Fifth Circuit's total docket were considered by the full court, according to a 2014 articlepublished in the Fordham Law Review.

To contact the reporter on this story: Patrick Ambrosio in Washington at pambrosio@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com